Thursday, January 7, 2016

The recently reported decision of Wham Kwok Han
Jolovan v Attorney-General[1] is intriguing in more ways than one.

The case has received public attention for its clarification
on the legal effects of police warnings – that they are “no more than an
expressions of the opinion of the relevant authority that the recipient has
committed an offence”. [2]

But the written judgment of this case by Justice Woo
Bih Li is also significant for its critique on how the warning was administered
to the recipient in the case. The Judge
shone the spotlight on how the police treated the recipient of the warning - and
the police did not come up smelling like a rose.

This is a side of the reported decision which not
only opens the lid on police processes, but also makes a fascinating story.

It should be noted at the onset that this is not your
run-of-the-mill criminal case. This case
concerns an offence which cannot be committed anywhere on the island of
Singapore except at Speakers' Corner in Hong Lim Park. The recipient of the
police warning in this case was a Singapore citizen who was exercising his
constitutional rights. The context of
the case being in the lofty realms of police constraints on civil activity, it adds
a special flavour to the story which the Judge unfolds.

Background - what the case is about

On 1 October 2014, Mr Jolovan Wham organised an event
at Speakers' Corner. The publicity for event expressly stated that foreigners
and permanent residents required a permit in order to participate in the event.
At the start of the event, Mr Wham also informed the participants that only
Singapore citizens were allowed to participate.

After the event, the Central Police Division (CPD)
commenced investigations against Mr Wham as CPD officers had observed that
there were participants that appeared to be foreigners. Subsequently, the
Attorney-General decided to direct the CPD to issue a warning to Mr Wham to
refrain from conduct amounting to an offence under the Public Order
(Unrestricted Area) Order 2013 [3] or any other criminal conduct
in the future, instead of charging Mr Wham.

On 25 March 2015 at the CPD Headquarters, Mr Wham was
verbally warned as directed by the Attorney-General.

Believing that he had done nothing wrong to warrant a
warning, Mr Wham applied to Court to challenge the warning given.

Judge unsure whether there was even any warning
given

Right at paragraph one of his judgment, the Judge
declared it was not even clear whether any warning was given at all.

The Judge then went on to scrutinise what transpired
between DSP Pannirselvam (the CPD Officer) and Mr Wham, which may be summarised
as follows:

On 25
March 2015, Mr Wham met the CPD Officer at the CPD Headquarters.

The CPD
Officer administered Mr Wham with an oral warning and then invited Mr Wham to
sign a document called "Notice of Warning" to acknowledge that he had
received the document.

Mr
Wham refused to sign the Notice of Warning.

Mr Wham
informed the CPD Officer that he wanted to consult his lawyers and requested a
copy of the Notice of Warning.

The
CPD Officer refused to give Mr Wham a copy of the Notice of Warning.

The CPD
Officer then made a handwritten note on his paper that "No copies of
the warning was issued to him."

On 4 May
2015, Mr Wham contacted CPD to enquire about the outcome of the investigations
against him.

On 5 May
2015, CPD sent a letter to Mr Wham stating that it had been placed on CPD’s
record that Mr Wham was “warned by … DSP S Pannirselvam on 25 March 2015".

The Judge having laid out the sequence of events, it
becomes evident to the casual observer that the way the CPD dealt with Mr Wham
was ambiguous and inconsistent.

Did the CPD intend to administer the warning to Mr
Wham orally or in written form?

How the CPD intended to administer the warning to Mr
Wham was not clear.

Handwritten notes on the Notice of Warning stated
"No copies of the warning was issued to him."

According to the Judge, if it was the intention of
CPD was to administer the warning orally, then the wording of the Notice of
Warning was inconsistent because it stated "You are hereby warned",
and not "you have been warned" and that a stern warning “would
be administered”, and not “has been administered”.[4]

The Judge also noted that DSP Pannirselvam's
handwritten notes stated "No copies of the warning was issued to him",
which seemed to indicate that he was treating the Notice of Warning as the
warning itself. [5]

The Judge commented: "If indeed CPD had
intended all along for DSP Pannirselvam to administer a warning orally followed
by a notice that the oral warning had been administered, then the Notice of
Warning was poorly drafted." [6]

The Notice of Warning was poorly drafted in more ways
than one. The Judge pointed out that the
Notice of Warning had no date and that it carelessly used the terms “warning”
and “stern warning” interchangeably.

The Judge suggested: "However, when the
Notice of Warning was not handed to Mr Wham because he had said he wanted to
consult a lawyer, there was a problem as to whether a warning had been
administered to Mr Wham at all. Perhaps it was because of this problem that the
position was then taken by CPD that an oral warning had already been issued."[7]

Then, there is also the mystery as to why the CPD
officer refused Mr Wham’s request for a copy of the Notice of Warning. On this point, the Judge thought that CPD
officer should not have withheld it from Mr Wham.

The Judge said: "It seems to me that if CPD’s
intention was to hand over a copy of the Notice of Warning to Mr Wham after the
warning had been administered, then DSP Pannirselvam should have handed over a
copy even though Mr Wham chose not to sign the acknowledgement.…… Furthermore,
it is not illogical for someone who is informed about a warning of an offence
to want to seek legal advice before signing any document pertaining to the
warning."[8]

Notably, the Judge vindicated Mr Wham’s wish to
consult a lawyer before signing any document.

AGC’s Acknowledgement of Remiss

Clearly, there was needless inconsistency and
ambiguity in the way the CPD conducted its proceedings with Mr Wham.

In what appears to be an acknowledgment of their
remiss, the Attorney-General’s Chambers told the media: "The
Attorney-General’s Chambers and the Singapore Police Force are reviewing the
process by which stern warnings are administered and the use of the notice, in
the light of the High Court's comments in the judgment." [9]

The Judge’s relentless scrutiny of how the CPD dealt
with Mr Wham revealed much to be desired of police processes, at least in the
area of administering warnings.

The Straits Times headlined their report on the
Court’s decision as “Activist fails to get police warning quashed”.

Perhaps in an alternative universe would we see the
Straits Times using this as the headline instead: “Judge finds fault with
how police warned activist”.

[3] Paragraph 4(1)(b) which provides
that an organiser of any demonstration held in Speakers’ Corner must not allow
any person who is neither a Singapore citizen nor a permanent resident to take
part in the demonstration.

About Me

Jeannette Chong-Aruldoss is a practising lawyer who earned her law degree in the United Kingdom. She also holds a Masters Degree in Corporate & Commercial Law from the London School of Economics & Political Science and was called to the English Bar in 1986.
Jeannette is happily married and a mother of four children.
She challenged the incumbent at Mountbatten SMC in Singapore's 2011 General Elections and garnered 41.38% of the votes cast.